Conservatorship for adult disabled child

[sassenach]

Have you done this? Ds turns 18 in May and we're looking into it. It's an expensive process! At least 5k in legal fees. We've been told we should do it by some, but then other people say it's not necessary. If we had 5k sitting around we would just do it, but it's not really that simple for us.

He's severely disabled to a level that it won't be disputable at all. What have you all done?

[Ravin]

I would start with looking at alternatives to paying for $5K in legal fees. Check with your state bar for options for families with modest means. Some nonprofits may be able to point you to discount or pro bono help as well. Your local court may have DIY packets available. Some attorneys will help you prepare the documents, and then you represent yourselves in court (limited representation).

[chiguirre]

I'm glad Ravin gave you some avenues to look into. That fee is about twice what we paid in Texas but that might be due to how state laws and courts are set up. I will say that in Texas there were quite a few hoops to jump through and the details had to be just right. It involved having ds served and we were lucky to be able to do that at his day program so that they could walk him through it as though it were another job task instead of having a police officer come to the house and freak him out.

 

Good luck navigating the process!

[sassenach]

5 minutes ago, chiguirre said:

I'm glad Ravin gave you some avenues to look into. That fee is about twice what we paid in Texas but that might be due to how state laws and courts are set up. I will say that in Texas there were quite a few hoops to jump through and the details had to be just right. It involved having ds served and we were lucky to be able to do that at his day program so that they could walk him through it as though it were another job task instead of having a police officer come to the house and freak him out.

 

Good luck navigating the process!

 

It's a much more complicated process than I anticipated. It's also largely geared toward protecting elders. 

At the risk of sounding ignorant, what are the downsides of not doing it? My friend cares for her 35 yo brother with CP and they never did it and it's caused zero problems. I'm trying to understand the urgency for us. To give you a picture, my son is non-verbal, non-mobile, completely tube fed and diapered. He's probably at a 6-month-old level. It's not really disputable that he's completely dependent on us for care and decision making. 

[chiguirre]

In that case, it may not be necessary. GW is not physically disabled but he does have an ASD and ID. We did it so that he couldn't be tricked into signing financial documents and to document the level of his special needs in case he got into trouble with the police. I'd ask around in your local area to see what other parents in your situation do. In our case, most parents in similar situations established guardianship. OTOH, we don't plan to seek guardianship for Geezle so its not a straight forward decision even in the same family.

[cbollin]

In theory, one of the downsides is that a hospital or doctor might decide to overrule you and leave you out.  Legally, without conservatorship, that could happen in some places. or at least that is what they say in my special needs support circles. And it was worth it to my friends to go through the process.  I'm going to link to a pdf document in my state with some discussion points to consider.  some mileage may vary in other places. https://www.thearctn.org/Assets/Docs/Conservatorship_Handbook.pdf

Some of my circle of SN families have adult children with similar situation to yours and others have less similar.  I don't know how all of it comes into play when getting SSI.

[TechWife]

I recommend you do it in order to make dealing with his finances easier. Social security disability may require it as well, I'm not sure. Also, you want to prevent anyone else applying for it - there are "professionals" out there that do this to elderly people - get appointed their guardians/conservators and then take all the money. In the state where my parents lived, there were two positions, guardian and conservator. They could be the same person. The guardian was in charge of making sure physical needs were met and could make medical decisions, just like you can with a child. The conservator managed the money.

[Ali in OR]

What's the difference between conservatorship and being legal guardians? We became dd's legal guardians when she turned 18 (involving paperwork and a lawyer, fees $1000). I need to be her legal guardian for doctors to talk to me, and that's a pretty important issue to me. I have given copies of the letter saying I'm her legal guardian to her doctors' offices, so if I'm calling about test results or whatever they can talk to me. I'm also her representative payee with Social Security, so I can do all of her banking, pay her bills, etc. 

ETA: I have to update paperwork for her guardianship every year around her birthday, including documenting how her money was spent. This gets filed with the court. I haven't had to pay fees for this--I just mail the update to the lawyer and their office files it electronically with the court.

[TechWife]

1 minute ago, Ali in OR said:

What's the difference between conservatorship and being legal guardians? We became dd's legal guardians when she turned 18 (involving paperwork and a lawyer, fees $1000). I need to be her legal guardian for doctors to talk to me, and that's a pretty important issue to me. I have given copies of the letter saying I'm her legal guardian to her doctors' offices, so if I'm calling about test results or whatever they can talk to me. I'm also her representative payee with Social Security, so I can do all of her banking, pay her bills, etc. 

Laws vary by state. In the state where my parents resided (my father had dementia), there were two different things. The guardian was responsible for the person - making sure they had appropriate care and could make medical decisions on their behalf. A conservator was in charge of the finances. This person would be the one to receive any funds (usually into an account set up just for this purpose) and pay bills. They could also make decisions like selling property. The guardian and the conservator can be the same person or two different people.

A medical power of attorney with a HIPPA disclosure that had been previously signed was all that was needed to allow doctors to talk to the designated person and to make medical decisions. The POA became void in their state when the person becomes incompetent and you have to move on to guardianship and conservatorship. The POA doesn't remove rights from the person granting it - they can still make their own decisions regarding medical care and finances (if it is a financial POA), it just means that the named person can conduct business on their behalf. A guardianship and conservatorship both removed rights from the person (including the right to manage their money, spend their money, etc.. Those tools actually make the person a dependent of the named person, and the named guardian can also claim them as a dependent on their taxes.

[cbollin]

25 minutes ago, Ali in OR said:

What's the difference between conservatorship and being legal guardians?

 

as techwife said, laws on difference and legal definitions will vary by state.  Here's link to the definitions in Oregon (assuming your screen name matches that).   One is medical and well being decisions and other is financial http://www.courts.oregon.gov/programs/family/guardianship-conservatorship/Pages/default.aspx

In my state, one of the differences is age (minor children have guardians, those 18 and over have conservators).  But no distinction in definition of "medical" vs "financial" in the terms. Various levels of finance, medical etc can be given in different situations.

eta: yes a representative payee is something else but related.

[Robin M]

Wouldn't a power of attorney over all work just as well?   What I was told is that conservatorship takes away all the person's rights to make any decision for themselves.  Where as Power of Attorney leaves them with all rights, but gives you the ability to make all decisions.  

[Ali in OR]

I know that these things are more typically set up for aging people who once had these rights and responsibilities for themselves. Our nonverbal dd, more like an infant, never has had the ability to speak for herself or make decisions. We just wanted to go on doing what we have always done as her parents--it's very much a parent/child relationship and always will be.

[cbollin]

15 minutes ago, Robin M said:

Wouldn't a power of attorney over all work just as well?   What I was told is that conservatorship takes away all the person's rights to make any decision for themselves.  Where as Power of Attorney leaves them with all rights, but gives you the ability to make all decisions.  

 

Where I live, if the person is not capable of understanding, then it's not valid to have them sign power of attorney.  Competence and capacity are legal terms used in determining which can be done. A bit more of the distinctions is in page 8 of the pdf I linked in my first reply (TN ARC). For some people POA is all that is needed.  For others, like ali in or, the person will always be a child. and that might be the case for us with youngest.

 

 

[TechWife]

22 minutes ago, Robin M said:

Wouldn't a power of attorney over all work just as well?   What I was told is that conservatorship takes away all the person's rights to make any decision for themselves.  Where as Power of Attorney leaves them with all rights, but gives you the ability to make all decisions.  

In some states a person's power of attorney becomes invalid if they become incompetent, then they move on to a guardianship and/or conservatorship.  If they never were competent, then anything they sign isn't valid. A power of attorney doesn't give someone the ability to make all decisions. It give them the ability to act on the person's behalf. For example, my mother wanted me to do her banking, so I did. I had the ability to do her banking because I had her POA.  I was engaging in her business on her behalf.  The person who granted the power of attorney can override the person with the POA and can revoke the POA at any time, either orally or in writing. A guardianship/conservatorship arrangement is a legal process done through the court system and in order to "undo" it, it would have to go through the court system again. It is a lengthy process. An incompetent person would have to become competent in order for that to happen.  In order for a guardianship to be granted, typically a person must be dependent upon others. If a person is dependent upon others to the degree that a guardianship/conservatorship is granted, then generally, they are not able to exercise their rights in the first place. Again, there are variances between states and it is really best for a person to know what the law is in their state.

[cbollin]

and a story in my circle.  My friend has conservatorship over her adult children with intellectual disability.  And if the "kids" go missing, the local police can treat  as a missing child instead of an adult who just left. probably not the situation the OP is facing though.  It's not a one size fits all answer.

[sassenach]

1 hour ago, Robin M said:

Wouldn't a power of attorney over all work just as well?   What I was told is that conservatorship takes away all the person's rights to make any decision for themselves.  Where as Power of Attorney leaves them with all rights, but gives you the ability to make all decisions.  

 

My understanding is that POA has to be given by a capable adult. My son is not.

[sassenach]

58 minutes ago, Ali in OR said:

I know that these things are more typically set up for aging people who once had these rights and responsibilities for themselves. Our nonverbal dd, more like an infant, never has had the ability to speak for herself or make decisions. We just wanted to go on doing what we have always done as her parents--it's very much a parent/child relationship and always will be.

 

This is us exactly. 

[Ottakee]

I have legal guardianship over each of my 3 children.  It costs about $500 for the testing required to prove they are in need of a guardian and then court was free.  We didn't use a lawyer at all.  I would call your local court and ask the process of getting guardianship of a disabled adult.  They had free paperwork for me to fill out.

 

I didn't need conservatorship as my kids had no money of their own that needed managing.  Under disability I am their payee so that gives me legal right to manage the finances.

[sassenach]

9 minutes ago, Ottakee said:

I have legal guardianship over each of my 3 children.  It costs about $500 for the testing required to prove they are in need of a guardian and then court was free.  We didn't use a lawyer at all.  I would call your local court and ask the process of getting guardianship of a disabled adult.  They had free paperwork for me to fill out.

 

I didn't need conservatorship as my kids had no money of their own that needed managing.  Under disability I am their payee so that gives me legal right to manage the finances.

 

That's a good idea. Also, same with the money. I'm more concerned about medical decisions than anything else. 

[Robin M]

Got it! Thank you.  We've been debating poa versus conservator ship versus legal guardian. We would need to be in charge of finances as well as medical. So will look into California requirements. 

[bethben]

I became a legal guardian of my son for under $100.  I paid for paperwork hints and tips and free help from th ARC in my state.  I am in charge of my son’s money through SSI.  Without me being his guardian, there are doctors and state agencies who won’t talk to me.